And if the First Amendment is dead, can we honestly claim to be a democratic republic any more?

This is not hyperbole. Imagine youre at a meeting of civically minded folks and its nearly Election Day. Your Congressman is just about to vote on an issue of great concern to your group. You suggest that its time to pass around a hat, collect some money, and buy an add alerting your neighbors  urging them to call the Congressman. You collect the money, and the next morning you go to buy your ad.

You think youre being a good American  getting involved in the democratic process. After all, the First Amendment said you have the freedom to associate  which you did, with other civically-minded people. That same amendment also said you have a right to petition for redress of grievances, and that you have free speech and press rights  so you can make a commercial that might reflect poorly on your Congressman.

After all, this is America.

But if you havent filed for your license, youd be wrong. You need to become familiar with a complex web of laws, or you need to hire the consultants, lawyers, and accountants who already are familiar with those decrees  before you GO to your local station, even before you collect the proverbial $200. Because if you dont, then youll go directly to jail.

Who came up with such an idea? Why, incumbent politicians of course. It bothers them to be criticized. Theyll grudgingly put up with it from their opponents because challengers usually cant raise sufficient money to publicly and effectively broadcast similar criticism, and they havent (yet) found a Supreme Court-sanctioned method for suppressing their opponents.

But if you and your neighbors discuss an incumbents record in a paid commercial, those are now called sham issue ads. According to the majority of the Supreme Court, you need government approval to criticize a politician.

However, Justices Thomas, Scalia, and Kennedy were a bit old-fashioned. They said this new law, the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold, violated free speech and free press rights.

Just in case you think Im full of hyperbole, or something worse  that Ive overstated the damage done to the First Amendment or that the members of Congress who supported this bill had good intentions  consider these quotes that Justice Scalia cut and pasted into his judicial opinion:

This bill is about slowing the ad war making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves - Senator Maria Cantwell, D-WA

These so-called issues ads... directly attack candidates without any accountability. It is brutal We have an opportunity in the McCain-Feingold bill to stop that  - Senator Barbara Boxer, D-CA

I think these issue advocacy ads are a nightmare. I think all of us should hate them [By passing the legislation], we could get some of this poison politics off television. - The late Senator Paul Wellstone, D-MN

Justice Thomas closed his opinion by predicting that the institutional press had seen their rights downgraded to a privilege, granted by the good graces of Congress. He wrote,

Media corporations are influential What is to stop a future Congress from determining that the press is too influential, and that the appearance of corruption is significant when media organizations endorse candidates or run slanted or biased news stories ? what is to stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy circumvention of the limitations of the current campaign finance laws?

Indeed, I believe that longstanding and heretofore unchallenged opinions such as Miami Herald v. Tornillo, are in peril Now, supporters need only argue that the press capacity to manipulate popular opinion, gives rise to an appearance of corruption After drumming up some evidence, laws regulating media outlets in their issuance of editorials would be upheld under the [Majoritys] reasoning.

 Although todays opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the Courts reasoning in that setting. The press now operates at the whim of Congress.

Days before McCain-Feingold was to be debated in the US Senate, columnist George Will called an old colleague, Paul Weyrich of the Free Congress Foundation. He got right to the point, I hope you and yours are doing everything you can to defeat McCain-Feingold in the House. Weyrich said his troops were gearing up as they spoke. To which Will replied, I assumed that was the case, but I wanted to be sure. This is the end of the world, you know.

It may not be the Apocalypse, but the enactment of McCain-Feingold signals the death of an already bruised and battered 1st Amendment. And the destruction of the First Amendment means an apocalypse for democracy.

I think that one could and should add that McCain Feingold was passed by a Republican Congress, signed into law by a Republican president, and upheld by several Supreme Court "justices", some of whom were appointed by Republicans.

There is only one party in this country. We have a permanent government that just took another step toward formalizing their semi-heriditary rule. Let's talk about that, shall we?

All here who strove with might and main to elect Republicans are directly to blame for this outrage on the Constitution. You can't, my friends, vote for a party that routinely stabs you, their base supporters, in the back time after time after time and then profess surprise at the outcome.

A bedrock principle of our Common Law is that a man is presumed to intend the foreseeable consequences of his actions. You who gave money to the Republicans and voted for the Republicans and encouraged others to do the same in justice and in law intended exactly this murder of the First Amendment.

Admit it. You want Big Brother. Quit lying to yourselves, folks. You want the tyranny that is coming, because you fear the freedom and responsibilities of the American Revolution. If that weren't so, then why did your party just saddle future generations with the biggest socialist welfare-state program since LBJ?

Your words are one thing, but your actions are quite the opposite thing. Your actions betray your true motives of fear of having to deal with the freedom the Constitution exacts from us.

By their fruits you shall know them. And you who supported the GOP certainly knew how rotten the tree is. You can't no claim that you didn't know.

Nobody can accept the leadership of a Party that gave us the egregiously mis-named "Patriot Act" or that of self-admitted traitors and Trotskyites like David Horowitz and the rest of the neo-con infestation and then claim ownership of the American Tradition as laid down by the Founders.

You Republicans want what's coming, but you lack the moral fibre to admit it.

You want to be lead, and cared for, and loved by the dark face behind the mustache on the propaganda posters that will line the streets of our children's America.

Just admit it to yourselves and to others. You're statists and socialists in league with the New Deal. Get honest about it.

At least we'll be clear about who the enemy is. It's the lying, cryptic nature of Republican socialism and socialist Republicans that I can't stand.

Hmmm, sounds like a libertarian. Although, saddly I have to agree with most of what you had to say. No I am not a Republican, and on the domestic side am very disgusted with Bush. Those Republicans who actually are conservative and in the Senate are totally ball-less. Conservatives need to take back the Republican party, and do it soon!

a small group of lke minded inviduals buying an ad? give me a break. In almost all cases Ads are bought by large groups.

And no one has stopped a word of mouth campaign. Call that critter. Call 5 of your friends to call that critter. Have them call 5 of their friends.

There is nothing that has stopped us from contacting that congress critter and making him/her aware of our concerns. there's nothing to stop us from calling our friends to call them. We just can't make an ad for our "friendly" congresscritter at certain times to "help their effort."

Long but superb reading. Justice Antonin Scalia's Dissent from the National Review ^ | Dec. 10, 2003 | Justice Antonin Scalia Posted on 12/11/2003 12:35:06 PM PST by Remember_Salamis December 11, 2003, 1:01 p.m. Sad Day for Free Speech The Supreme Court upholds McCain-Feingold: Scalia's dissent A Primary Document EDITOR'S NOTE: On Dec. 10, 2003, the U.S. Supreme Court issued its ruling upholding the Bipartisan Campaign Reform Act in a 5-4 rulling. Among the 4 was Justice Antonin Scalia. We reprint his dissent below. JUSTICE SCALIA, concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. With respect to Titles I, II, and V: I join in full the dissent of THE CHIEF JUSTICE; I join the opinion of JUSTICE KENNEDY, except to the extent it upholds new ¤323(e) of the Federal Election Campaign Act of 1971 (FECA) and 202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II-A, and II-B of the opinion of JUSTICE THOMAS. With respect to Titles III and IV, I join THE CHIEF JUSTICE's opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own. This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of "soft" money to fund "issue ads" that incumbents find so offensive. To be sure, the legislation is evenhanded: It similarly prohibits criticism of the candidates who oppose Members of Congress in their reelection bids. But as everyone knows, this is an area in which evenhandedness is not fairness. If all electioneering were evenhandedly prohibited, incumbents would have an enormous advantage. Likewise, if incumbents and challengers are limited to the same quantity of electioneering, incumbents are favored. In other words, any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents. Beyond that, however, the present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much "hard money"  the sort of funding generally not restricted by this legislation  as do their challengers? See FEC, 1999-2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999-Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet materials as visited Dec. 4, 2003, and available in Clerk of Court's case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in "hard" contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist's Last Laugh: How K Street Lobbyists Would Benefit from the McCain-Feingold Campaign Finance Bill 3 (July 5, 2001), http://www.pirg.org/democracy/democracy.asp?id2=5068. Is it an oversight, do you suppose, that the so-called "millionaire provisions" raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election "war chest"? See BCRA ¤¤304, 316, and 319. And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195-200 (J. Thompson & S. Moncrief eds. 1998). Was it unintended, by any chance, that incumbents are free personally to receive some soft money and even to solicit it for other organizations, while national parties are not? See new FECA ¤¤323(a) and (e). I wish to address three fallacious propositions that might be thought to justify some or all of the provisions of this legislation  only the last of which is explicitly embraced by the principal opinion for the Court, but all of which underlie, I think, its approach to these cases. (a) Money is Not Speech It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g., Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O'Brien, 391 U. S. 367 (1968), or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984). That proposition has been endorsed by one of the two authors of today's principal opinion: "The right to use one's own money to hire gladiators, [and] to fund 'speech by proxy,' . . . [are] property rights . . . not entitled to the same protection as the right to say what one pleases." Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) (STEVENS, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, "this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment." Our traditional view was correct, and today's cavalier attitude toward regulating the financing of speech (the "exacting scrutiny" test of Buckley, see ibid., is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. See, e.g., Printing Act of 1662, 14 Car. II, c. 33, ¤¤1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 65, n. 6 (1963) ("The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication . . ."). Division of labor requires a means of mediating exchange, and in a commercial society, that means is supplied by money. The publisher pays the author for the right to sell his book; it pays its staff who print and assemble the book; it demands payments from booksellers who bring the book to market. This, too, presents opportunities for repression: Instead of regulating the various parties to the enterprise individually, the government can suppress their ability to coordinate by regulating their use of money. What good is the right to print books without a right to buy works from authors? Or the right to publish newspapers without the right to pay deliverymen? The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise. This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore. History and jurisprudence bear this out. The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each advertisement. 10 Anne, c. 18, ¤113. It was a response to unfavorable war coverage, "obvious[ly] . . . designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism." F. Siebert, Freedom of the Press in England, 1476-1776, pp. 309-310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id., at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, ¤1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was "by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions." A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764-1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g., 1 D. Ramsay, History of the American Revolution 61-62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245-249 (1936); Schlesinger, supra, at 67-84. We have kept faith with the Founders' tradition by prohibiting the selective taxation of the press. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 (1983) (ink and paper tax); Grosjean, supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra, at 592. These press-taxation cases belie the claim that regulation of money used to fund speech is not regulation of speech itself. A tax on a newspaper's advertising revenue does not prohibit anyone from saying anything; it merely appropriates part of the revenue that a speaker would otherwise obtain. That is even a step short of totally prohibiting advertising revenue  which would be analogous to the total prohibition of certain campaign-speech contributions in the present cases. Yet it is unquestionably a violation of the First Amendment. Many other cases exemplify the same principle that an attack upon the funding of speech is an attack upon speech itself. In Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals' biographies for payment to the victims. And in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), we held unconstitutional a university's discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), holding that paid advertisements in a newspaper were entitled to full First Amendment protection: "Any other conclusion would discourage newspapers from carrying 'editorial advertisements' of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities  who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure 'the widest possible dissemination of information from diverse and antagonistic sources.' " Id., at 266 (citations omitted). This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16-17. That reliance was appropriate. If denying protection to paid-for speech would "shackle the First Amendment," so also does forbidding or limiting the right to pay for speech. It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer. (b) Pooling Money is Not Speech Another proposition which could explain at least some of the results of today's opinion is that the First Amendment right to spend money for speech does not include the right to combine with others in spending money for speech. Such a proposition fits uncomfortably with the concluding words of our Declaration of Independence: "And for the support of this Declaration, . . . we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." (Emphasis added.) The freedom to associate with others for the dissemination of ideas  not just by singing or speaking in unison, but by pooling financial resources for expressive purposes  is part of the freedom of speech. "Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." NAACP v. Button, 371 U. S. 415, 431 (1963) (internal quotation marks omitted). "The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U. S. 449, 460 (1958), stemmed from the Court's recognition that '[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.' Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee '"freedom to associate with others for the common advancement of political beliefs and ideas," ' . . . ." Buckley, supra, at 15. We have said that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). That "right to associate . . .in pursuit" includes the right to pool financial resources. If it were otherwise, Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnership or corporate form. That sort of restriction would be an obvious violation of the First Amendment, and it is incomprehensible why the conclusion should change when what is at issue is the pooling of funds for the most important (and most perennially threatened) category of speech: electoral speech. The principle that such financial association does not enjoy full First Amendment protection threatens the existence of all political parties. (c) Speech by Corporations Can Be Abridged The last proposition that might explain at least some of today's casual abridgment of free-speech rights is this: that the particular form of association known as a corporation does not enjoy full First Amendment protection. Of course the text of the First Amendment does not limit its application in this fashion, even though "[b]y the end of the eighteenth century the corporation was a familiar figure in American economic life." C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations-and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said: "[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Id., at 776-777 (internal quotation marks, footnotes, and citations omitted). In NAACP v. Button, supra, at 428-429, 431, we held that the NAACP could assert First Amendment rights "on its own behalf, . . . though a corporation," and that the activities of the corporation were "modes of expression and association protected by the First and Fourteenth Amendments." In Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, 8 (1986), we held unconstitutional a state effort to compel corporate speech. "The identity of the speaker," we said, "is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster." And in Buckley, 424 U. S. 1, we held unconstitutional FECA's limitation upon independent corporate expenditures. The Court changed course in Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id., at 679, and remain of the view that it was error. In the modern world, giving the government power to exclude corporations from the political debate enables it effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views. People who associate  who pool their financial resources  for purposes of economic enterprise overwhelmingly do so in the corporate form; and with increasing frequency, incorporation is chosen by those who associate to defend and promote particular ideas  such as the American Civil Liberties Union and the National Rifle Association, parties to these cases. Imagine, then, a government that wished to suppress nuclear power  or oil and gas exploration, or automobile manufacturing, or gun ownership, or civil liberties  and that had the power to prohibit corporate advertising against its proposals. To be sure, the individuals involved in, or benefited by, those industries, or interested in those causes, could (given enough time) form political action committees or other associations to make their case. But the organizational form in which those enterprises already exist, and in which they can most quickly and most effectively get their message across, is the corporate form. The First Amendment does not in my view permit the restriction of that political speech. And the same holds true for corporate electoral speech: A candidate should not be insulated from the most effective speech that the major participants in the economy and major incorporated interest groups can generate. But what about the danger to the political system posed by "amassed wealth"? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials  which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to "distort" elections  especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech. But, it is argued, quite apart from its effect upon the electorate, corporate speech in the form of contributions to the candidate's campaign, or even in the form of independent expenditures supporting the candidate, engenders an obligation which is later paid in the form of greater access to the officeholder, or indeed in the form of votes on particular bills. Any quid-pro-quo agreement for votes would of course violate criminal law, see 18 U. S. C. ¤201, and actual payoff votes have not even been claimed by those favoring the restrictions on corporate speech. It cannot be denied, however, that corporate (like noncorporate) allies will have greater access to the officeholder, and that he will tend to favor the same causes as those who support him (which is usually why they supported him). That is the nature of politics  if not indeed human nature  and how this can properly be considered "corruption" (or "the appearance of corruption") with regard to corporate allies and not with regard to other allies is beyond me. If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so. It did not do so, I think, because the juice is not worth the squeeze. Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician's fear of being portrayed as "in the pocket" of so-called moneyed interests. The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain. That, at least, is the assumption of a constitutional guarantee which prescribes that Congress shall make no law abridging the freedom of speech. But let us not be deceived. While the Government's briefs and arguments before this Court focused on the horrible "appearance of corruption," the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to "crack cocaine," 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), "drive-by shooting[s]," id., at S879 (remarks of Sen. Durbin), and "air pollution," 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, "I hope that we will not allow our attention to be distracted from the real issues at hand  how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don't aid our Nation's political dialog." Id., at 20521-20522 (remarks of Sen. McCain). He assured the body that "[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . ." 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g., 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) ("This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves"); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) ("These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal. . . . We have an opportunity in the McCain-Feingold bill to stop that . . ."); 145 Cong. Rec. S12606-S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) ("I think these issue advocacy ads are a nightmare. I think all of us should hate them. . . . [By passing the legislation], [w]e could get some of this poison politics off television"). Another theme prominent in the legislative debates was the notion that there is too much money spent on elections. The first principle of "reform" was that "there should be less money in politics." 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). "The enormous amounts of special interest money that flood our political system have become a cancer in our democracy." 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). "[L]arge sums of money drown out the voice of the average voter." 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is "drowning in money." Id., at H404 (remarks of Rep. Menendez). And most expansively: "Despite the ever-increasing sums spent on campaigns, we have not seen an improvement in campaign discourse, issue discussion or voter education. More money does not mean more ideas, more substance or more depth. Instead, it means more of what voters complain about most. More 30-second spots, more negativity and an increasingly longer campaign period." 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry). Perhaps voters do detest these 30-second spots  though I suspect they detest even more hour-long campaign-debate interruptions of their favorite entertainment programming. Evidently, however, these ads do persuade voters, or else they would not be so routinely used by sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of those who govern us to judge which campaign speech has "substance" and "depth" (do you think it might be that which is least damaging to incumbents?) and to abridge the rest. And what exactly are these outrageous sums frittered away in determining who will govern us? A report prepared for Congress concluded that the total amount, in hard and soft money, spent on the 2000 federal elections was between $2.4 and $2.5 billion. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2-1 (D. Magleby ed. 2002), which was a year that "shattered spending and contribution records," id., at 22. Even taking this last, larger figure as the benchmark, it means that Americans spent about half as much electing all their Nation's officials, state and federal, as they spent on movie tickets ($7.8 billion); about a fifth as much as they spent on cosmetics and perfume ($18.8 billion); and about a sixth as much as they spent on pork (the nongovernmental sort) ($22.8 billion). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. If our democracy is drowning from this much spending, it cannot swim. * * * Which brings me back to where I began: This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce "fairer" campaigns, but to mute criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted for the Act believed they were acting for the good of the country. There remains the problem of the Charlie Wilson Phenomenon, named after Charles Wilson, former president of General Motors, who is supposed to have said during the Senate hearing on his nomination as Secretary of Defense that "what's good for General Motors is good for the country."* Those in power, even giving them the benefit of the greatest good will, are inclined to believe that what is good for them is good for the country. Whether in prescient recognition of the Charlie Wilson Phenomenon, or out of fear of good old-fashioned, malicious, self-interested manipulation, "[t]he fundamental approach of the First Amendment . . . was to assume the worst, and to rule the regulation of political speech 'for fairness' sake' simply out of bounds." Austin, 494 U. S., at 693 (SCALIA, J., dissenting). Having abandoned that approach to a limited extent in Buckley, we abandon it much further today. We will unquestionably be called upon to abandon it further still in the future. The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues: "This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system." 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold). The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents' writing of the rules of political debate. The federal election campaign laws, which are already (as today's opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come  and always, always, with the objective of reducing the excessive amount of speech. * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: "[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist." Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953). __________________________________________

There is this joke about a wealthy man who flirted with a woman. He said, "If I pay you $1 million dollars, will you sleep with me?" She replied, "Well, maybe..." He then said, "Will you sleep with me for $1?" The woman became enraged and said, "What do you think I am?" The man replied, "We have already established what you are, now we are just haggling over the price!"

This is similar to the so-called campaign finance laws. The politicians approved, and the Supreme Court upheld, the principle that the content of peaceful political speech is now subject to censorship. To be sure, they tell us that they will only censor political speech for big, million-dollar reasons, and that ordinary people have nothing to fear. True to form, the politicians are already saying that the new campaign finance law does not do enough and more restrictions on political speech will be required. They started out by using rare, million-dollar excuses to ban political dialogue, and they will keep finding "loopholes" until they have many everyday $1 reasons to censor political speech and peaceful dissent. They have established that political freedom and freedom of speech are no longer at the foundation of our country. Instead, these things are to be held in contempt and today abolished for a million-dollar reason, and tomorrow or the next day they are to be abolished for a $1 reason. They have established this principle, and we know exactly what type of people they are. All that remains is to haggle over the price.

..."All here who strove with might and main to elect Republicans are directly to blame for this outrage on the Constitution. You can't, my friends, vote for a party that routinely stabs you, their base supporters, in the back time after time after time and then profess surprise at the outcome...."

Precisely! Theis is my problem with the Sean Hannity theory of pragmatisim in voteing. If you can be counted upon by the Repubs in the same way that the Dems can count on the blacks YOU HAVE GIVEN AWAY YOUR VOTE! It's rendered meaningless in that the motivation of the hacks becomes the ones they are trying to entice over. So many came to despise Clinton and all he stood for that Hannity's idea is "sound logic" in these now diseased minds.

See ya' at the civil war, folks!

Now lemmie see...ought six with a scope or m-16, dang what goes better with my genuine leather m60 field jacket!?

Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors.

A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment.

It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.

It is so ordered.

20
posted on 12/26/2003 5:55:05 AM PST
by Rome2000
(Your right to "Jihad" ends when I have to take off my shoes)

a small group of lke minded inviduals buying an ad? give me a break. In almost all cases Ads are bought by large groups.

Those large groups -- viz. the 241-chapter, 77,000- contributor Minnesota Citizens Concerned for Life -- are made up of small people like me and my wife who typically make contributions of approximately $20-30. And what Court is now legitimately and constitutionally going to tell us that MCCL can't publish the Democratic candidate's voting record on partial-birth abortion bills, no matter how close to the election that documented information is disseminated?

We just can't make an ad for our "friendly" congresscritter at certain times to "help their effort."

And that's an arbitrary, whimsical abrogation of First Amendment freedom.

U.S. Supreme Court, 2003 - The Oligarchy*

(All Your Sovereignty Are Belong To Us!)

oligarchyPronunciation: 'ä-l&-"gär-kE, 'O-Function: nounInflected Form(s): plural-chiesDate: 15421: government by the few2: a government in which a small group exercises control especially for corrupt and selfish purposes; also: a group exercising such control3: an organization under oligarchic control

sovereigntyVariant(s): alsosovranty /-tE/Function: nounInflected Form(s): plural-tiesEtymology: Middle English soverainte, from Middle French soveraineté, from Old French, from soverainDate: 14th century1obsolete: supreme excellence or an example of it2 a: supreme power especially over a body politic b: freedom from external control : AUTONOMYc: controlling influence3: one that is SOVEREIGN; especially: an autonomous state

25
posted on 12/26/2003 6:04:44 AM PST
by Happy2BMe
(2004 - Who WILL the TERRORISTS vote for? - - Not George W. Bush, THAT'S for sure!)

"And what Court is now legitimately and constitutionally going to tell us that MCCL can't publish the Democratic candidate's voting record on partial-birth abortion bills, no matter how close to the election that documented information is disseminated?"

Once the United States Constitution is no longer a legitimate document, the "court" that will do the rest of the dismantling of our once great Republic will assuredly be those in post #25 . .

26
posted on 12/26/2003 6:11:42 AM PST
by Happy2BMe
(2004 - Who WILL the TERRORISTS vote for? - - Not George W. Bush, THAT'S for sure!)

McCain Feingold stinks. But no one could possibly believe that the Framers intended, if indeed they could possibly have imagined, the First Amendment to inculcate and protect the culture of money for access and influence which was on display in Washington this year, exemplified in the energy bill and the medicare drug bill debates.

The Framers provided for Senators to be elected by (and most likely from) legislators all of whom knew one another personally, and for Representatives to be elected from districts of gross populations around 50,000, of whom at most 10,000 would be the 21-year-old male freeholders entitled to the franchise. The assumed that Electors for President and Vice President would be selected with (at most) the same franchise as prevailed for the Representatives, and made it possible for the state legislators directly to choose the Electors, as well.

Something must be done -- and the moral of the story is that in the absence of good proposals, problems as dire as the culture of Washington will inevitably draw solutions which are worse than nothing when no one is forcefully offering solutions that are better than nothing...

I find it hard to believe that at the beginning of the 21st century, someone would claim that in reducing us to no more powerful voice than word of mouth, our freedoms have not yet again been curtailed. Incumbants have full access to the press, advertizing, push-polling, franking, and all the other assorted methods they use to manipulate the electorate, yet we are reduced to countering all this by chatting with our neighbors over a fence post.

I really wish we had some document with teeth that said something about 'congress shall make no law'...

34
posted on 12/26/2003 6:57:04 AM PST
by zeugma
(The Great Experiment is over.)

I'm new to FR. Well, I guess not completely. I lurked a long time, but not many posts. I find FR to be a great place to sample the news over a cuppa in the morning.

I guess you're right, though.

You seem to be hip to the real sitch, so I'll address others who may peruse this missive.

From what I can see principle is not a big consideration here - but power is. Perhaps better to say the illusion of power. Feeling close to it. Feeling connected to it.

It's the classic deal Satan offers - compromise and in exchange I'll give you some worldly power and glory. But in the end of course Old Slewfoot double crosses the chumps that take the deal and they wind up losing all.

But everybody knows that, but they take the deal anyway, because they just can't pass up the nice baubles.

My take on most of the GOP base is that they deeply need to feel somehow close to the ruling elites. They get high on the thought of even proximity to power, and so they'll sell their principles in exchange for that every time. It isn't principle to conservative causes that animates them, but rather a childish need to feel close to celebrity. You REALLY see that in the Democrats, who worship star power, but what can one say of the GOP's support of Ah-nold, who is a Democrat in all but name, is a product of Hollywood, supports abortion on demand, and is even married to a Kennedy? (I love that last one - I guess Uncle Ted personally advised on Ah-hold's campaign. How many parties are there?) It's the cheap pull of glitz and celebrity and image that gets the chumps every time.

It's really the same phenomenon of people letting their kids go to Michael Jackson "pajama parties" even though they know he's a freak - or who now demonstrate on his behalf. They need to feel close to celebrity and power, and they'll literally betray their own children to get the feeling (not the real thing, of course). The GOP faithful are like that.

The elites who control "both" parties understand the sick need of the GOP base to feel loved and appreciated by the Leader, and they can predict with near mathematical certainty how many they can three-card-monty into supporting their core platform via clever packaging and marketing of "image" issues.

Hey, I'm a corporate shirt. Been one for a good part of my life. I've spent years of my life sitting in management meetings listening to really highly paid, very smart and very ruthless people talk about identifying our psychological "need states" (it's always sex, power, presitge, security that they play to) and how to identify and exploit "market segments" based on that information.

Keep in mind that these people trained at top universities and studied the works of great minds who spent their careers dissecting human emotions and vulnerabilities over decades and decades on behalf of the corporate elites who fund the universities.

This is all really cynical stuff, folks. Believe me, I know. I remember one meeting on how best to position a candy product to take advantage of compulsive overeaters while not alienating the "youth" and "occasional indulgence" market segments. You wouldn't believe how callous it all is, talking about people with real problems and how the company can make money by exploiting their sick needs, or how they can get kids to pester their parents to buy them tons of sugar that their little bodies surely don't need.

And it works very well. If read this and haven't figured it out yet, KILL YOUR TELEVISION.

Now, the leadership of the big parties (actually, the "big party") not only know all of this, they're largely the same folks who desiged the ad campaigs that peddle smut to your children. Note the revolving door between the corporate world and top politics. Is it an accident that Robert McNamara, Dick Cheney, Donald Rumsfeld and so on and so forth were corporate bigshots before they became political bigshots? I think not.

These same folks spend big money on these same Fifth Avenue advertising firms who analyze the need states of the party faithful, divide them up into market segments, package and market to them, with an eye of course on how far they can play one segment without alientating others beyond an acceptable point given the goals of the moment.

The GOP faithful are the most malleable of all the chumps, it seems to me. These folks elected Bush Sr. who stabbed them in the back on taxes and equivocated on abortion, and then they elected Bush Jr. who ran up ruinous budget deficits, killed the First Amendment, signed into law an enormous expansion of Great Society, refuses to enforce our borders after we were attacked by illegal aliens, and so on and so forth. Bush Jr. is now I think getting set to equivocate on sodomite marriage (the very thought makes me want to hurl). But the elites all understand beforehand that they can push it that far, and still keep their allegience, because they give them just enough of the illusion of influence that they keep coming back for more.

Anyway, since I'm just sitting around today I'll tell you another story from corporate land. I was at another dreary corporate meeting about 10 years ago, and an Advertising expert was going on and on about the big Ad campaign for the coming year. There was the usual parade of television commercials targeting this or that group, and playing on their basic needs in selling the products. I remember he got to the part about planting stories in the press through "friendly" journalists, and he said something like "we find that planting advertising as news stories is the most cost effective form of advertising, because - get this - most people believe that what they read in the press is objective journalism!" And all the corporate jackals around the table just laughed and laughed, including me. Man, we just couldn't get over that one. Such easy marks. Such nice cows just waiting to be milked. Nicens little moo-cow.

And it's TRUE. Most people really don't know that the major media is one large corporate advertisement. News is advertising, advertising is news. "The media are the story" is the slogan.

I think that this is really the crux of it. Most people are well intentioned little bundles of need who just want to be cuddled and cared for and appreciated by those with the concomitants of power and noteriety, and they'll sell their souls (and those of their children) to anybody who can scratch their itch.

Most of the GOP base are just working stiffs who like their NFL team, watch a lot of television designed for sixth graders, and drink a lot of beer. Most have never left the confines of their small towns, never travelled much, speak only English (and that often poorly), have read little other than newpapers, and get their opinions in the can from talk radio. I mean, for these folks Rush Limbaugh is a great mind! Sheesh!

They're mostly good folks, but they're easy marks for the predatory animals that are our revolving-door politcal/corporate power elites just love to take for all their worth. Men like Cheney and Rumsfeld. Those guys scare the bejeesus out of me.

But what can one say to the a group who take the Left Behind series seriously - seeing it as a reliable blueprint to American Mideast policy?!

You know, I think that the big problem is that humans have too much of a spread on the IQ bell curve. There aren't so many really smart people, but there are lots of really not-so-brights, and this disparity just BEGS the oppression of the dumb by the smart. It just leans out for the smart to form their own alliances to milk the nice, dumb moo cows.

One last rhetorical question: do most of you here understand that the corporate elites on both coasts sneer at the inhabitants of the rest of America? They call where you live "fly-over country" because they never go there they only fly over it on their way between New York and LA. Do you understand that they consider you animals to be herded and kept in their place?

There's a book called the "Bell Curve" that approaches this question (and if you've heard of it, I can tell you that the issue of race is just a small part of it), and foresees a future of very wealthy intellectual elites safely ensconsed in their walled suburban developments ruling over masses of the not-so-bright. This is a serious book written by serious scholars, and I can't recommend it too hightly. It also ponders the question of how these bright elites who will tend to have brighter children might try to form an hereditary elite of the smart. Although not mentioned, it hints at exclusive use of genetic tools to ensure that only their children are smart, and all the rest are dumb. There's an interesting Sci-Fi film called "Gattaca" that explores those notions. I think that we may be seeing the beginnings of that now. I also suspect that on some subconscious level this sneering contempt that our elites have for those of us from "fly-over country" drives their desire to dilute our numbers through massive immigration (if not legal, then they'll settle on just ignoring the law - hey, they rule!), abortion on demand, medical research on human embryos, and so on. I admit that I'm specualting there, but think about it. Doesn't that ring true with you? It does with me.

I didn't think so.

Okay, go turn on the tube before you miss the next NFL play off game? Don't forget to take your Soma (I mean, drink your Budweiser. Tastes great! Less filling!)

And don't forget to vote for whomever Rush tells you next November (if he's sober enough to talk!)

"There is this joke about a wealthy man who flirted with a woman. He said, 'If I pay you $1 million dollars, will you sleep with me?' She replied, 'Well, maybe..." He then said, 'Will you sleep with me for $1?' The woman became enraged and said, 'What do you think I am?' The man replied, 'We have already established what you are, now we are just haggling over the price!'"

This is not a(n) old joke, it is a true story. The "wealthy man" was George Bernard Shaw, and the currency was British pounds. The 'joke' was Shaw's and the object of the joke was his target:

=================================================

George Bernard Shaw was reported to have asked a socialite. Would you sleep with me for a million pounds? he asked her. Certainly, she replied with a smile. Would you sleep with me for ten pounds? Shaw then asked. Certainly not! she replied indignantly. What do you think I am? Weve already established that, Shaw said. Now were just haggling over price.

37
posted on 12/26/2003 7:20:51 AM PST
by boris
(The deadliest Weapon of Mass Destruction in History is a Leftist With a Word Processor)

Congress has the power to remove this topic (campaign reform) from the authority of the Court. Indeed, Congress (imagine for a moment it has cojones) can remove any topic from the purview of the Court...with certain very specific exceptions. Interesting, no? Don't believe, me? Read this with my emphasis:

U.S. Constitution, Article III, section 2:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

38
posted on 12/26/2003 7:27:03 AM PST
by boris
(The deadliest Weapon of Mass Destruction in History is a Leftist With a Word Processor)

tax cuts are the only thing that matters. the insects in washington can't survive on the scale they are now without tax increases. that is the battleground; cashflow is everything.

It doesn't work that way.

The federal government finances its activities by borrowing; its spending is not limited to the funds that it takes in. It habitually "lives beyond its means." In practical terms it has furnished itself with the ability to create money out of thin air. Tax revenues are used to service the ever-increasing debt load created by borrowing.

This is another example of the governing class accumulating power at the expense of the rest of us.

45
posted on 12/26/2003 9:41:11 AM PST
by Mackey
(May there be Peace on Earth -- American Style)

I really hate it when someone attempts to respond to a well thought out treatise with no information, no attempt to impart anything real to the discussion. It's like arguing with a 2 year old.

Oh please, there is no appreciable difference between the Republican party and the Democratic party. They are both for nanny government, just in different areas, and the things done by (and not done by) the recent republicans in power have left much to be desired.

. . . but what can one say of the GOP's support of Ah-nold, who is a Democrat in all but name, is a product of Hollywood, supports abortion on demand, and is even married to a Kennedy? (I love that last one - I guess Uncle Ted personally advised on Ah-hold's campaign. How many parties are there?) It's the cheap pull of glitz and celebrity and image that gets the chumps every time.

What do you make of the fact that his support is weighted more toward the female end of the voter spectrum (not unlike Slick Willie Clinton)?

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